08-06 304

• Court: Board of Veterans' Appeals
• Decided: March 8, 2010
• Docket: 08-06 304
• Status: Unpublished

Opinion

Citation Nr: 1008491 Decision Date: 03/08/10 Archive Date: 03/17/10

DOCKET NO. 08-06 304 ) DATE ) )

On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri

THE ISSUES

1. Whether new and material evidence has been received to reopen a claim of service connection for hearing loss.

2. Entitlement to service connection for tinnitus.

REPRESENTATION

Appellant represented by: Veterans of Foreign Wars of the United States

ATTORNEY FOR THE BOARD

A. Muhlfeld, Associate Counsel

INTRODUCTION

The Veteran had active military service from February 1958 to July 1958.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

(Consideration of the appellant's claim of entitlement to service connection for tinnitus is deferred pending completion of the development sought in the remand that follows the decision below.)

FINDINGS OF FACT

1. By way of a September 1959 rating decision, the RO denied service connection for deafness; the Veteran did not appeal.

2. Evidence received since the September 1959 rating decision does not raise a reasonable possibility of substantiating the claim.

CONCLUSION OF LAW

New and material evidence sufficient to reopen a claim of entitlement to service connection for hearing loss has not been received. 38 U.S.C.A. §§ 1131, 5108 (West 2002); 38 C.F.R. §§ 3.156, 3.303 (2009).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will attempt to obtain on behalf of the claimant, and (3) any evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The Board notes that effective May 30, 2008, VA amended its regulations governing VA's duty to provide notice to a claimant regarding the information necessary to substantiate a claim. The new version of 38 CFR 3.159(b)(1), removes the portion of the regulation which states that VA will request that the claimant provide any evidence in the claimant's possession that pertains to the claim. See 73 Fed. Reg., 23353-54 (April 30, 2008).

Although the VCAA has changed the standard for processing Veterans' claims, the VCAA has left intact the requirement that new and material evidence be received in order to reopen a previously and finally denied claim under 38 U.S.C.A. § 5108. It is specifically noted that nothing in the Act shall be construed to require the Secretary to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C.A. § 5108. See 38 U.S.C.A. § 5103A(f).

The Board notes that the Veteran was apprised of VA's duties to both notify and assist in correspondence dated in February 2007, prior to the adjudication of the Veteran's claim to reopen. Specifically regarding VA's duty to notify, the notifications to the Veteran apprised him of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The Veteran was also apprised of the criteria for assigning disability ratings and for award of an effective date, see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, he was informed of the requirement that new and material evidence must be received in order to reopen a claim, the reasons that his previous claim was denied, and what was required to substantiate the underlying service connection claim. Kent v. Nicholson, 20 Vet. App. 1 (2006).

Regarding VA's duty to assist, the Veteran has not identified any private or VA medical records that need to be obtained. In regards to obtaining a VA examination, the Board observes that VA need not schedule an examination because the duty to obtain an examination or medical opinion under 38 C.F.R. § 3.159(c)(4) applies only if new and material evidence is presented or secured. Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (VA need not provide a medical examination or medical opinion until a claim is reopened). As discussed below, the Board has determined that new and material evidence to reopen the claim of service connection for hearing loss has not been received. Accordingly, VA did not have a duty to provide him with a medical examination.

A decision of the RO becomes final and is not subject to revision on the same factual basis except when a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). In this case, a September 1959 rating decision denied service connection for deafness; the Veteran did not appeal. Because the Veteran did not appeal, this decision became final based on the evidence then of record and is not subject to revision upon the same factual basis. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103 (2009); see also 38 C.F.R. § 19.2 (1959).

The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material is neither required nor permitted. Id. at 1384; see also Butler v. Brown, 9 Vet. App. 167, 171 (1996).

"New" evidence is evidence not previously submitted to agency decision makers. "Material" evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Thus, the Veteran's claim may not be reopened unless VA has received evidence that was both not of record at the time of the 1959 denial, and that also raises a reasonable possibility of substantiating the claim that the Veteran's hearing loss began during or worsened during military service.

At the time of the September 1959 denial, the relevant evidence of record consisted of the service treatment records (STRs), which included a July 1958 clinical record cover sheet containing a diagnosis of deafness, bilateral, perceptive, etiology undetermined, noting that the Medical Board approved separation from service due to his hearing loss. The medical board concluded that deafness pre-existed military service. In a June 1958 consultation, the Veteran stated that he had hearing trouble prior to service, and it was becoming worse. The STRs also contained a December 1957 entrance examination showing a whispered voice test which revealed normal hearing acuity of 15/15; and a June 1958 discharge examination showing a whispered voice test which revealed normal hearing acuity of 15/15 in the right ear, and reduced acuity of 10 out of 15 in the left ear. The audiogram also administered at discharge in 1958, showed decibel levels of 40 for 500 Hertz, 45 for 1000 Hertz, 55 for 2000 Hertz, 60 for 3000 Hertz, and 60 for 4000 Hertz.

Evidence received since the September 1959 denial consists of a statement from the Veteran where he described being assigned as a mechanic on track vehicles (tanks), and stating his belief that this occupational specialty resulted in noise exposure that in turn caused his hearing loss, see January 2007 Application for Compensation and Pension, and August 2007 notice of disagreement (NOD). Other evidence submitted since the 1959 denial includes a duplicate document-the July 1958 clinical record cover sheet containing a diagnosis of bilateral deafness, etiology undetermined, which was previously considered by agency decision makers at the time of the prior denial. No other evidence has been received since the prior final denial in 1959.

In this case, the only new evidence received consists of the Veteran's Application for Compensation and Pension; and his August 2007 Notice of Disagreement (NOD), which contained the Veteran's statement regarding his belief that his hearing loss was the result of serving as a tank mechanic in service. This newly received information, when considered alone or with previous evidence of record, does not suggest an onset of hearing loss during service or a worsening during service, especially in light of the prior determination that hearing loss had pre-existed military service and was evident during service, but was not aggravated thereby. Reporting noise exposure during service does not tend to prove that the then- demonstrated hearing loss worsened. Thus, this newly received information does not raise a reasonable possibility of substantiating the claim and is insufficient to reopen the previously denied claim of service connection for hearing loss.

The only other evidence received since the 1959 denial is the July 1958 clinical record cover sheet, which is duplicative of the evidence previously considered by agency decision makers at the time of the prior final denial. Because this evidence is a duplicate of a document of record at the time of the prior denial, the evidence is not considered "new" and therefore can not constitute new and material evidence.

Based on the foregoing, the Board finds that new and material evidence to reopen the previously denied claim of service connection for hearing loss has not been received, and the application to reopen will therefore be denied.

ORDER

New and material evidence has not been received to reopen a claim of service connection for hearing loss; the appeal of this issue is denied.

REMAND

The Veteran contends that his tinnitus is the result of exposure to acoustic trauma while being trained as a tank mechanic in service, and he noted the onset of his tinnitus was during service in 1958.

Here, the record shows evidence of subjective complaints of tinnitus. The STRs are negative for complaints or treatment related to tinnitus. Nevertheless, the Veteran is competent to describe his in-service exposure to loud noises, see Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465, 469 (1994), and the Board has no reason to question the credibility of the Veteran's statement that he was exposed to loud noise while training as a tank mechanic.

Therefore, because the record contains current subjective complaints of tinnitus, and competent lay statements of in- service noise exposure, the Board finds that a remand is necessary to afford the Veteran a VA audiological examination, which includes a nexus opinion on the question of whether he currently experiences tinnitus as a result of in-service acoustic trauma. The examiner should review the Veteran's statement describing his noise exposure resulting from training as a tank mechanic, and taking into account all the evidence of record, including the STRs, the examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's currently diagnosed tinnitus is attributable to his military service.

Accordingly, the case is REMANDED for the following action:

1. The Veteran should be afforded a VA audiological examination, conducted by an audiologist with appropriate expertise to provide a nexus opinion regarding the medical probability that any current tinnitus is attributable to the Veteran's period of active military service. The audiologist should take a detailed history regarding onset and any continuity of tinnitus. An opinion should thereafter be provided as to whether it is at least as likely as not that the Veteran's current tinnitus is attributable to military service, taking into consideration the Veteran's statements regarding in-service noise exposure, and his statement that his tinnitus began during service.

The Veteran's claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination.

The AOJ should make sure that the examination report complies with this remand and the questions presented in the examination request, especially with respect to detailing any connection between current disability and military service. If the report is insufficient, it should be returned to the examiner for necessary corrective action, as appropriate.

2. After undertaking any other development deemed appropriate, the AOJ should consider the issue on appeal in light of all information or evidence received. If the benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).

________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs